R v Naylor; ex parte - [2012] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v NP; ex parte A-G (Qld) [2012] QCA 116

PARTIES:

R
v
NP
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 361 of 2011
SC No 505 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

Supreme Court at Maryborough

DELIVERED ON:

4 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2012

JUDGES:

Margaret McMurdo P and Holmes JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Questions answered as follows:

Question (a)     Yes, if the threat or promise was made by a person in authority.

Question (b)     Unnecessary to answer.

Question (c)     Unnecessary to answer.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the Attorney-General has referred points arising out of a ruling on an application to exclude certain evidence – where the respondent was charged on indictment with the offence of murder – where the respondent made a confession in a police interview – where evidence of the confession was excluded on an application on the ground that it was not given voluntarily – where a threat or a promise was found to have been communicated to the respondent by a person in authority through the medium of the respondent’s lawyer – whether conduct constituting a threat or promise conveyed by the respondent’s lawyer acting in the ordinary course of his engagement engages the provisions of s 10 of the Criminal Law Amendment Act 1894 in relation to a threat or promise being communicated by a person in authority – whether reference involved points of law within the meaning of s 668A of the Criminal Code 1899

Criminal Code 1899 (Qld), s 590AA, s 668A, s 669A
Criminal Law Amendment Act 1894 (Qld), s 10
Penalties and Sentences Act 1992 (Qld), s 13A

Bownds v State 362 S W 2d 858 (Tex 1962), cited
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16, cited
R v Heyward & Minter [2010] SASCFC 38, cited
R v Lewis; ex parte Attorney-General [1991] 2 Qd R 294, cited
R v NP, unreported, Dick AJ, SC No 505 of 2011, 28 November 2011, cited
R v PV; ex parte Attorney-General [2005] 2 Qd R 325; [2004] QCA 494, cited
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12, cited

COUNSEL:

M J Copley SC for the appellant
J J Allen for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

MARGARET McMURDO P: I agree with Holmes JA's reasons save that I am prepared to accept that question (c) in the Attorney-General's reference to this Court under s 668A Criminal Code 1899 (Qld) raises a point of law. As her Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Naylor; ex parte

Details

AGLC: R v Naylor; ex parte [2012] QCA 116
Case: [2012] QCA 116
Decision Date: 4 May 2012

CaseChat Overview and Summary

In the case of R v Naylor; ex parte, the central dispute involved the application of specific provisions of the Criminal Law Amendment Act 1894 and the Criminal Code 1899, particularly in relation to the exclusion of evidence from a confession made by the respondent during a police interview. The respondent, Naylor, was charged with the offence of murder. The crux of the case revolved around the admissibility of the confession as evidence, given that it was argued to be the result of a threat or promise made by a person in authority through the medium of the respondent’s lawyer. The matter was referred to the court by the Attorney-General for a ruling on these specific points.

The court was required to address several legal issues, primarily whether the conduct of the respondent’s lawyer, who conveyed a threat or promise to Naylor, constituted the engagement of a person in authority as per section 10 of the Criminal Law Amendment Act 1894. Another issue was whether this situation engaged the provisions of the act concerning threats or promises communicated by a person in authority. Additionally, the court needed to determine if the reference involved points of law within the meaning of section 668A of the Criminal Code 1899.

The court found that the conduct of the respondent’s lawyer, who acted in the ordinary course of his engagement, indeed engaged the provisions of section 10 of the Criminal Law Amendment Act 1894 if the threat or promise was made by a person in authority. The court ruled that if such a threat or promise was made by a person in authority, it would fall under the purview of the act. The court did not find it necessary to answer the remaining questions posed in the reference, as the resolution of the primary question was sufficient for the proceedings. Consequently, the court answered the referred questions as indicated in the orders.

Orders

Orders of the court

Questions answered as follows:

Question (a) Yes, if the threat or promise was made by a person in authority.

Question (b) Unnecessary to answer.

Question (c) Unnecessary to answer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v NP; ex parte A-G (Qld) [2012] QCA 116
PARTIES:	R v NP (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 361 of 2011 SC No 505 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 668A Criminal Code
ORIGINATING COURT:	Supreme Court at Maryborough
DELIVERED ON:	4 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2012
JUDGES:	Margaret McMurdo P and Holmes JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Questions answered as follows: Question (a) Yes, if the threat or promise was made by a person in authority. Question (b) Unnecessary to answer. Question (c) Unnecessary to answer.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the Attorney-General has referred points arising out of a ruling on an application to exclude certain evidence – where the respondent was charged on indictment with the offence of murder – where the respondent made a confession in a police interview – where evidence of the confession was excluded on an application on the ground that it was not given voluntarily – where a threat or a promise was found to have been communicated to the respondent by a person in authority through the medium of the respondent’s lawyer – whether conduct constituting a threat or promise conveyed by the respondent’s lawyer acting in the ordinary course of his engagement engages the provisions of s 10 of the Criminal Law Amendment Act 1894 in relation to a threat or promise being communicated by a person in authority – whether reference involved points of law within the meaning of s 668A of the Criminal Code 1899 Criminal Code 1899 (Qld), s 590AA, s 668A, s 669A Criminal Law Amendment Act 1894 (Qld), s 10 Penalties and Sentences Act 1992 (Qld), s 13A Bownds v State 362 S W 2d 858 (Tex 1962), cited Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16, cited R v Heyward & Minter [2010] SASCFC 38, cited R v Lewis; ex parte Attorney-General [1991] 2 Qd R 294, cited R v NP, unreported, Dick AJ, SC No 505 of 2011, 28 November 2011, cited R v PV; ex parte Attorney-General [2005] 2 Qd R 325; [2004] QCA 494, cited Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12, cited
COUNSEL:	M J Copley SC for the appellant J J Allen for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent